The Constitutional Court found No. 176 / 2015 Coll.
The Constitutional Court found on 19 May 2015 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
21.07.2015
176
FIND
The Constitutional Court
On behalf of the Republic
On 19 May 2015, the Constitutional Court decided under sp. zn. Pl. ÚS 14 / 14 in plenary composed of the President of the Court of Pavel Rychetský and Judges Jaroslav Fenyk, Vlasta Formánková, Vladimir Krórka, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáková, Vojtěch Šimíček, Milady Tomková and Jiří Zemánek (Judge) on the proposal of the Supreme Administrative Court on the annulment of § 47 of Act No. 62 / 2003 Coll., on the elections to the European Parliament and on the amendment of certain laws, and § 48 (1) in words, "which have advanced to the Skrutinia," the same law on the participation of the Parliament of the Parliament of the Czech Republic as participants in the proceedings
as follows:
Motion denied.
Reasons
Application to initiate proceedings
Proceedings before the Supreme Administrative Court
1. The Supreme Administrative Court ("the appellant ') discussed the case of the appellants (a) Mgr. Alexandra Uhlová, (b) Pavlíny Packáková and (c) The Green Party, all represented by the lawyer Pavel Uhl, on the application for annulment of the election of candidates Mgr. Tomáš Zdechovský and Ing.
2. By order of 24 June 2014 No. Vol 16 / 2014-69 The Supreme Administrative Court suspended the proceedings and, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") on the same day, submitted to the Constitutional Court an application for annulment of the provisions of Sections 47 and 48 (1) in the words "which advanced to the Skrutinia," Act 62 / 2003 Coll., on elections to the European Parliament and amending certain laws. It suspended the procedure until the Constitutional Court decided on the application for annulment of the contested provisions.
Important content of the proposal
3. The Supreme Administrative Court assumed that Article 223 of the Treaty on the Functioning of the European Union (TFEU) provided for a single electoral procedure for elections to the European Parliament, but has not yet been adopted an implementing act. Therefore, the decision of the representatives of the Member States within the Council 76 / 787 / ECSC, EEC, Euratom of 20.9.1976 concerning the election of the members of the European Parliament by direct universal suffrage (hereinafter referred to as "the Act '), supplemented by Council Decision 2002 / 772 / EC, Euratom, constitutes the only common framework in which the Member States currently move when adopting national adjustments. Article 1 of the Act (as consolidated) provides that Members of the European Parliament are to be elected in each Member State" according to the principle of proportional representation'. Article 2 retains the right for Member States to establish constituencies or otherwise further divide their constituencies, unless the relative nature of the electoral system is affected overall. Finally, Article 3 The Act allows Member States "to set a minimum threshold for the allocation of mandates. However, that threshold may not be set at national level in excess of 5% of the votes cast. 'Article 8 The Act then regulates the relationship with national legislation as follows:" Subject to the provisions of this Act, the electoral procedure in each Member State shall be governed by national law. Such national provisions, which may, where appropriate, take account of the specificities in the Member States, shall not be affected overall by the relative nature of the electoral system.';
4. On 22 November 2012, the European Parliament adopted a resolution on elections to the European Parliament in 2014 [2012 / 2829 (RSP)], in which it called on the Member States "to establish appropriate and balanced minimum limits for the distribution of seats in accordance with Article 3 of the Act, in order to take due account of the choices made by the citizens in the elections, while ensuring the functioning of Parliament '. This call was made by the European Parliament in particular in the light of the new arrangements for the election of the European Commission, which it introduced (as from 1 December 2009) the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereinafter referred to as the Treaty of Lisbon) and the changes in the relationship between the European Parliament and the European Commission, which will take place from the 2014 elections. The European Parliament has expressed the belief that a reliable majority of euro Members will be essential for the stability of the European Union's legislative procedures (hereinafter referred to as the EU) and the good functioning of its executive.
5. The appellant assumes that a five% closing clause for elections to the European Parliament is introduced by law in the Czech Republic. European law allows for such regulation, provided that the relative nature of the electoral system is not affected overall. However, it does not impose an obligation on Member States to introduce a closure clause, so that these elections are governed by national law as a whole.
6. In the elections to the European Parliament, held in May 2014, the mandates of Euro Members in the Czech Republic were divided as follows, on the basis of the above-mentioned provisions of Act No. 62 / 2003 Coll., on elections to the European Parliament and amending certain laws, as amended, (hereinafter referred to as "the Law on European Elections' or" the Act on Elections to the European Parliament '):
| Strana | Platné hlasy | Volební dělitel | Mandáty | ||||||
|---|---|---|---|---|---|---|---|---|---|
| č. | název | celkem | v % | 1 | 2 | 3 | 4 | 5 | |
| 5 | Křesťanská a demokratická unie – Československá strana lidová | 150 792 | 9,95 | 150792 | 75396 | 50264 | 37698 | 30158,4 | 3 |
| 7 | Koalice TOP 09 a STAN | 241 747 | 15,95 | 241747 | 120873,5 | 80582,34 | 60436,75 | 48349,4 | 4 |
| 10 | Komunistická strana Čech a Moravy | 166 478 | 10,98 | 166478 | 83239 | 55492,67 | 41619,5 | 33295,6 | 3 |
| 14 | Česká strana sociálně demokratická | 214 800 | 14,17 | 214800 | 107400 | 71600 | 53700 | 42960 | 4 |
| 16 | ANO 2011 | 244 501 | 16,13 | 244501 | 122250,5 | 81500,34 | 61125,25 | 48900,2 | 4 |
| 20 | Občanská demokratická strana | 116 389 | 7,67 | 116389 | 58194,5 | 38796,34 | 29097,25 | 23277,8 | 2 |
| 24 | Strana svobodných občanů | 79 540 | 5,24 | 79540 | 39770 | 26513,34 | 19885 | 15908 | 1 |
7. However, if the five% closure clause in question had not been applied, the mandates would have been allocated as follows:
| Strana | Platné hlasy | Volební dělitel | Mandáty | ||||||
|---|---|---|---|---|---|---|---|---|---|
| č. | název | celkem | v % | 1 | 2 | 3 | 4 | 5 | |
| 5 | Křesťanská a demokratická unie – Československá strana lidová | 150 792 | 9,95 | 150792 | 75396 | 50264 | 37698 | 30158,4 | 2 |
| 7 | Koalice TOP 09 a STAN | 241 747 | 15,95 | 241747 | 120873,5 | 80582,34 | 60436,75 | 48349,4 | 4 |
| 10 | Komunistická strana Čech a Moravy | 166 478 | 10,98 | 166478 | 83239 | 55492,67 | 41619,5 | 33295,6 | 3 |
| 14 | Česká strana sociálně demokratická | 214 800 | 14,17 | 214800 | 107400 | 71600 | 53700 | 42960 | 3 |
| 16 | ANO 2011 | 244 501 | 16,13 | 244501 | 122250,5 | 81500,34 | 61125,25 | 48900,2 | 4 |
| 20 | Občanská demokratická strana | 116 389 | 7,67 | 116389 | 58194,5 | 38796,34 | 29097,25 | 23277,8 | 2 |
| 23 | Strana zelených | 57 240 | 3,77 | 57240 | 28620 | 19080 | 14310 | 11448 | 1 |
| 24 | Strana svobodných občanů | 79 540 | 5,24 | 79540 | 39770 | 26513,34 | 19885 | 15908 | 1 |
| 32 | Česká pirátská strana | 72 514 | 4,78 | 72514 | 36257 | 24171,34 | 18128,5 | 14502,8 | 1 |
8. In the view of the Supreme Administrative Court, it is clear from these figures that the applicants Tomáš Zdechovský (KDU-ČSL) and Miroslav Poche (ČSSD) were also elected, as a result of the application of the statutory five% closure clause, while otherwise these two mandates would have been obtained by Ivan Bartoš [Czech Pirates Party ("Pirates')] and Ondřej Liska (Green Party).
9. The Supreme Administrative Court maintains that, from the perspective of the party electorate who was excluded from the skrutinia because of the closure clause, his voice is "failing." As a result, the political opinion of such an electorate is not represented in any way by the representative body and is not present in its decision-making. Given the limited number of mandates and the fact that the mandate is not divisible, there will naturally always be a group of such unrepresented small party voters. However, as a result of the application of the closing clause, the number of valid votes but not taken into account in the 2014 elections to the European Parliament has increased to 301 245, which is 19,88% of the total number of valid votes. The percentage of unrepresented voters thus exceeded even the most successful party's electoral profit in the elections (YES 2011, which won 244 501, 16.13% of valid votes). In addition, it can also be pointed out from the candidate's point of view that, as a result of the application of the closing clause, the party for which they were candidates, but which did not achieve the specified percentage result, is automatically excluded from the skrutinia. This makes the mandates reached "cheaper" in terms of the number of votes cast for parties that, on the contrary, overcome the closing clause. This can be demonstrated at the 2014 elections, when the lowest number of votes sufficient to earn a mandate was 50 264 (i.e. the number of votes cast for the KDU- CSL divided by three), whereas the Pirates were not sufficient to obtain at least one mandate or significantly higher number of votes cast, i.e. 72 514. From the perspective of access to elected functions, it is no longer possible to ignore the fact that all the preferential votes cast will also fall by removal from the skrutinia. In these elections, for example, the first Pirates candidate Ivan Bartoš received 12 644 preferential votes and did not become a Member of the European Parliament, while the more successful of the two contested candidates, Tomáš Zdechovský, did not receive half the number of preferential votes (a total of 5 063).
10. In the appellant's view, the contested legal provisions therefore restrict the free or free competition of political forces in a democratic society [Article 5 of the Constitution and Article 22 of the Charter of Fundamental Rights and Freedoms ("the Charter ')], the equality of voting rights for all voters (Article 21 (3) of the Charter) and the right of citizens to access elected functions on equal terms (Article 21 (4) of the Charter). Such a restriction on political rights would be acceptable if it pursued a legitimate objective and would be capable of achieving that objective, it would be necessary, while at the same time the legislator's choice of solution would limit the rights guaranteed by constitutional order only to the extent necessary to achieve the objective pursued. However, the applicant did not find these reasons in the present case.
11. The appellant referred to the case-law of the Constitutional Court on the issue of the closing clause in the case of elections to the Chamber of Deputies of the Parliament of the Czech Republic [cf. sp. zn. all decisions of the Constitutional Court are also available at http: / / nalus.ujud.cz] and in the case of municipal elections [cf. Resolution sp. zn. IV. ÚS 54 / 03 of 25.8.2004 (not published in SbNU)]. In the quoted find sp. zn. Pl. ÚS 25 / 96 The Constitutional Court accepted some disproportion in terms of equality of electoral law, which was justified by the fact that "other serious reasons arising from the purpose and function of elections in democratic society... [because] the aim of the elections... is not merely to express the political will of individual voters and to acquire only a differentiated mirror image of the currents and political attitudes of voters." According to the Constitutional Court, it is therefore "permissible to put a certain integration stimulus into the electoral mechanism itself," for example in the form of an artificial 5% closure clause, whose integration role helps to create a majority (or a majority) capable of reaching a decision and enables the establishment of a functioning government. Without its application, it could be "a political representation divided into a larger number of small groups with diverse interests, which would make the creation of the majority much more difficult or completely impossible." However, the Constitutional Court did not fail to emphasise that "the existence of a restrictive clause must in any event be conditional only on serious reasons' and that" even for a restrictive clause, the principle of minimising State intervention in relation to the objective set must also apply. Therefore, the need for electoral restrictions must also be interpreted strictly. "(emphasis added). In the spirit of this argument, 5% of the closing clause applied in the municipal elections also stood, although in this case the argument in favour of constitutionality is weakening the closing clause.
12. The appellant considers that the European Parliament and the elections to this representative body differ from the cases previously considered so that the reasons for the decisions cited by the Constitutional Court can no longer be transferred to the case under consideration without further examination. The European Parliament plays a qualitative role in the functioning of the European Union other than national parliaments in the functioning of the Member States. It does not, as a whole, have a direct legislative initiative (it must be addressed to the European Commission) and it is necessary to reach an agreement with the EU Council made up of the relevant ministers of the Member States to approve the legislation. The influence of this representative body on the form of a leading executive body, the European Commission, is still limited - the European Parliament elects its President and expresses its confidence in the European Commission as a whole, but it is made up of candidates from individual Member States and does not have to reflect the political composition of the European Parliament. The Member States continue to have a decisive influence on the functioning of the European Union, and the European Parliament is only gradually approaching the position of an equal player in recent years. The broad spectrum of political representation in the European Parliament can therefore contribute to increasing the legitimacy of the decisions taken and the fear of reducing the capacity of European legislation and the executive that would result from the diversity of represented political views is not credible. The contested law therefore does not pursue, in view of the current position of the European Parliament in the system of the institutions of the European Union, an otherwise legitimate objective of integrating the political will of the electorate. This conclusion cannot, according to the appellant, be reversed by the fact that the European Parliament resolution of 22 November 2012 called on the Member States "to introduce appropriate and balanced minimum limits on the distribution of seats in their electoral law in accordance with Article 3 of the Act, so as to take due account of the choices made by citizens in the elections, while ensuring that Parliament functions'. While mere political proclamation of the current majority of the European Parliament cannot be a relevant reference criterion for assessing the compliance of a 5% clause with the constitutional order of the Czech Republic, it cannot be seen that even according to the parliamentary resolution cited, the minimum limits for the distribution of seats should be" appropriate 'and "balanced'. If the legislator was motivated to enact an artificial closure clause of up to 5% under (optional) Article 3 Only the fact that it is - in the words of the explanatory memorandum - common in the Czech Republic, difficult to talk about the suitability and balance of such artificial interference in equality of voting rights and competition between political parties in the European elections.
13. However, even if the need for "integration incentives" in the future intensifies along with the gradually expanding powers of the European Parliament, the appellant considers that the closure clause is not fit to meet this objective. In fact, integration or differentiation effects can only be considered through the optics of a collective body at the level of its whole, not from the perspective of the individual sections of the European Parliament elected in each Member State. The lists of candidates are not drawn up by pan-European political parties and therefore the integration of political forces in the European Parliament takes place across national continents. Even a single Member elected as a party in a particular state can thus become part of a large coalition of equally political parties, and on the contrary, a large group of members of a strong national party may not find common ground with any of the existing political blocks and may thus constitute a disintegration element. The idea that closing clauses at national level could in any way contribute to the integrity of the political spectrum in the European Parliament is thus rather illusory. In the Czech Republic, only a small section of all Members (21 out of a total of 751 representatives) is chosen, thus the integration effect of the closing clause used in the Czech Republic for the overall capacity of the European Parliament will inevitably always remain very limited.
14. Finally, the appellant considers that even if the closing clause to achieve the objective pursued (if it is intended to be the integration of political representation at European level) could contribute, it is not a necessary solution in a democratic society, since its role - at least in the Czech Republic with regard to the low number of mandates - is sufficiently effective in playing the so-called natural threshold given by the chosen mandate allocation method. In the last elections to the European Parliament held in the Czech Republic, for example, (without counting the closing clause), an electoral gain of 3.77% of the votes in force would be sufficient to obtain one mandate as a European Member. The natural threshold then represents the electoral gain of the Party Dawn of Direct Democracy of 3,12% of the valid votes, which, even in the absence of an artificial closing clause, would not be sufficient to obtain a mandate. Of course, the natural threshold is difficult to predict in advance, and the resulting value observed after the elections always depends, among other things, on the number of candidate parties (or also on the size of the constituency, but this does not matter for elections to the European Parliament, as the whole of the Czech Republic is a single constituency). Nevertheless, it can be demonstrated, on a practical example of the last European Parliament elections, that the natural threshold limits the access of small political parties to the European Parliament and fulfils a certain integration function in itself. This, together with the earlier arguments, undermines the notion of the necessity of another artificial restriction of equal competition between political parties in the form of a closing clause.
15. The appellant also points out that roughly half of the Member States applied the artificial closure clause to the European Parliament this year. The maximum permissible level of the closing clause (5%) was introduced by countries such as France, other than the Czech Republic (even for each of the constituencies separately), Croatia, Lithuania, Latvia, Hungary, Poland, Romania and Slovakia, the lower applies for example in Italy, Austria, Sweden and Greece (3%). It should be noted that, in the case of countries with very few seats in the European Parliament, the closing clause has no practical meaning, since it is necessary to obtain at least one mandate by far more votes than the maximum permissible closing clause (e.g. Slovenian Desus in the 2009 elections to the European Parliament has gained 7.2% of the vote, which, although it exceeded the four% closing clause at the time, was not sufficient to obtain any of the seven mandates then divided). However, among the countries that do not apply the closure clause for elections to the European Parliament, there are also countries represented in the European Parliament with a large number of seats, such as the United Kingdom (73 mandates), Spain (54 mandates), or the State with the highest number of mandates (96 out of a total of 751), Germany, where the previously established closing clause is no longer applied, on the basis of a decision of the Federal Constitutional Court.
16. The appellant also recalls that the German Federal Constitutional Court found as an unconstitutional clause not only 5% (cf. judgment of 9 November 2011 in joined cases 2 BvC 4 / 10 and Others), but even the subsequently enacted clause of 3% (cf. Judgment of 26 February 2014 in joined cases 2 BvE 2 / 13 and others), even though in the German context, the reasoning regarding the distortion of the equality of electoral law as a result of an artificial closure clause was weakened as compared to that of the Czech Republic, since the natural threshold in the last European elections was only half a percentage.
Different opinion of certain Judges
17. Vol 16 / 2014-69 attached a different opinion to the above-cited resolution Zdeněk Kühn, Radan Malík and Miloslav Excellent. In particular, they expressed their doubts as to whether the application in question could be negotiated, because the outcome of the proceedings before the Constitutional Court cannot have any effect on the validity of the election of the two candidates under appeal. The elections have already taken place, in full compliance with the applicable and effective law. It is an irrefutable fact that voters have adapted their choice not only to their political preferences, but also to existing electoral rules, which is also a five-percent closing clause. The sub-" deletion "of election results and the assignment of mandate to two other candidates would, even if (perhaps) The Constitutional Court gave rise to the unconstitutional conclusion clause, leading to a complete obscuration of the electoral outcome. It would lead to a denial of the will of voters who voted according to one rule, and who would learn ex post that they actually voted according to another. If the decision of the Constitutional Court cannot have any meaning for the matter itself, the Court cannot at all make a valid application.
18. The dissenting judges also consider that the majority of the members of the electoral senate understand the principle of equal electoral law in a simplified manner. As the Constitutional Court has repeatedly stated: 'the principle of equality does not have an absolute (abstract) character, it is only relative equality. It cannot therefore be understood mechanically, even as a special case of equality. In certain cases, even a certain limitation on the equality of voting rights is permitted (the finding sp. zn. This specific equality is particularly apparent on issues such as closing clauses, conditions for the submission of candidate lists, election campaigns, election geometries and election arithmetic [paragraph 60 of the judgment of 29 March 2011, sp. zn. ÚS 52 / 10 (N 56 / 60 of SbNU 693)]. The Constitutional Court pointed out that "the principle of equal electoral law must be understood to mean that each voter has the same number of votes as any other, but not that each person has the same weight in relation to the final election result (the number of mandates obtained)' (paragraph 61 above, here the Constitutional Court quotes and summarises its existing caselaw).
19. Moreover, the constitutional order does not know the proportional system in relation to elections to the European Parliament. The proportionate system arises from European law. The Constitutional Court has traditionally distinguished situations where the Constitution prescribes a proportionate system and situations where the Constitution is silent on the electoral system. As a key - and with the current proposal completely incompatible - the passage must therefore be marked point 68 of the sp. zn. Pl. ÚS 52 / 10 (see above), which implies that the increase in the limit clause must not only jeopardise - generally speaking - the democratic substance of the elections. In relation to the natural threshold set for elections to the Chamber of Deputies - where the proportional electoral system of the Constitution is prescribed (!) - the Constitutional Court expressed itself in two key findings, namely Sp. Pl. ÚS 25 / 96 (see above) and Pl. ÚS 42 / 2000 of 24.1.2001 (N 16 / 21 SbNU 113; 64 / 2001 Coll.). In both, he stated that only exceeding the 10% clause could be considered as such an intervention in a proportional system that threatens its democratic substance. It is therefore not clear what the reason is to set a stricter benchmark for elections to the European Parliament; Moreover, in a situation where the Constitution, as with regional or municipal elections, does not prescribe a proportionate system, and on the contrary, the European law expressly admits the closing clause.
20. The majority of the electoral senate is also said to have a simplistic understanding of the role of the European Parliament. It is undisputed that the European Parliament's powers have gradually strengthened over recent decades. This happened last and visibly in the Treaty of Lisbon. While the European Parliament still does not have a legislative initiative, it may ask the European Commission to submit a proposal for a legal act of the European Union - it may not listen, but it must give the European Parliament reasons (Article 225 TFEU). While the European Parliament is not an exclusive legislator, as is the case at national level, it contributes equally to the ordinary legislative procedure with the EU Council (Article 294 TFEU). It also elects the President of the European Commission (Article 14, Article 17 (7) of the Treaty on European Union, hereinafter referred to as "the TEU '), approves the other members as a College (Article 17 (7) of the TEU), may give the European Commission mistrust (Article 17 (8) TEU, Article 234 TFEU), elects the European Ombudsman (Article 228 TFEU), etc. The role of the European Parliament in the ordinary legislative procedure is complicated, but it is clearly contrary to the notion of a fragmented body endowed with a lot of non-classified soliders. The European Parliament is involved in adopting legislation equally with the EU Council. In the absence of a consensus, there is a Conciliation Committee composed of the same number of members of both institutions. If there is no agreement, the proposal will be rejected, but this has happened exceptionally in practice so far (it is said that this can change if the views presented by the current majority of the Senate are carried forward). The above is also fully in line with how the European Parliament sees itself. On 22 November 2012, it adopted a (legally non-binding) resolution concerning the European Parliament elections in 2014, in which it called on the Member States to" introduce in their electoral law appropriate and balanced minimum limits for the distribution of seats, so as to take due account of the choice of citizens expressed in the elections, while ensuring the functioning of Parliament'. The European Parliament's decision was addressed to the Member States in particular with regard to the new arrangements for the election of the European Commission introduced by the Treaty of Lisbon and the changing relationship between the European Parliament and the European Commission resulting from the 2014 elections. He thus expressed his belief that a reliable majority in the European Parliament would be essential for the stability of the European Union's legislative procedures and the good functioning of its executive. Adequate closure clauses in national electoral systems, which European law expressly allows, can help this objective.
21. Indeed, the strength of any institution within the political system is not only due to written rules, but also to the development of the political system itself and to the slow-forming constitutional conventions, and current developments in the context of the selection of the President of the European Commission are an example of this. It is in this that the dissenting judges see a considerable simplification of the majority proposal. The artificial closure clause for elections to the European Parliament is used by half the Member States of the European Union, which sends 380 Members to the European Parliament. These 380 Members are selected with emphasis on integration elements. Emphasis on integration in several countries can make a significant contribution in its entirety to the European Parliament's greater functionality.
22. If the natural threshold for the election of a Member of the European Parliament was 1 / 21, about 4.76%, the artificial threshold would indeed lack meaning in the Czech system. However, the natural threshold for obtaining a mandate is variable and is significantly lower than 4%. In the current situation, it is evident that the abolition of the artificial clause would result in the Czech Republic sending representatives of the nine parties, almost a third more, to the European Parliament instead of representatives of seven parties. In addition to the effect of "overpopulation" of political parties, such a situation would also lead to a weakening of the position of Czech political parties in the clubs formed in the European Parliament. Fragmentation of the Czech political representation in the European Parliament would lead to a reduction in the importance of Czech representatives at all.
23. The current elections to the European Parliament are already third in the Czech Republic. Experience has shown that the closure clause does not in any way restrict the diversity of party and the representativeness of political parties. In the 2004 elections, six political parties and movements were qualified for the European Parliament (in addition to the then strong parties of the ODS, KSČM, KDU- ČSL and ČSSD, two mandates and independent ones and three mandates of the SNK - European Democrats), only four parties in the exceptional elections in 2009 (ODS, ČSSD, KSČM and KDU- ČSL), while in the 2014 elections, the diversity of the Czech electoral system was marked in a total of seven successful parties and movements. The success of the Free Citizens' Party shows that a five-percent closure clause does not represent an insurmountable threshold, giving exclusivity only to large, rich or traditional parties. Indeed, these results and the diversity of party representation are more or less correlated with the effect of closing clauses in the elections to the Chamber of Deputies.
Proceedings before the Constitutional Court
24. The Constitutional Court pursuant to the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) sent the motion to the Chamber of Deputies and to the Senate of the Parliament of the Czech Republic as parties to the proceedings and to the Government and the Ombudsman, who are entitled to intervene as interveners.
Observations of the Chamber of Deputies and the Senate
25. In his observations of 11 July 2014, the President of the Chamber of Deputies summarised the course of the legislative process and stated that the draft law on elections to the European Parliament and on the amendment of certain laws was submitted to the Government of the Chamber of Deputies on 19 September 2002; It was approved at the third reading on 3 December 2002, with 170 Members voting against it and 124 Members voting against it. The debates held in the Chamber of Deputies did not discuss in more detail the meaning or constitutionality of the proposed 5% closing clause for elections to the European Parliament. The bill was passed on to the Senate on 9 December 2002. He returned it to the Chamber of Deputies with amendments. The Chamber of Deputies debated the bill returned on 18 February 2003 and adopted it as approved by the Senate, with 180 Members voting in favour of its adoption and no one voting against it. After the adoption of the Act and its signature by the relevant constitutional authorities, the Act was published on 4 March 2003 in the Collection of Laws under No 62 / 2003 Coll. The contested legal provisions were not amended during their period of validity.
26. In its observations of 21 July 2014, the President of the Senate stated that the draft law on elections to the European Parliament was forwarded to the Senate on 6 December 2002 and was discussed on 9 January 2003. Paragraph 47 of the draft law, introducing a 5% closing clause, has also been discussed in the general part of the debate. Senators were aware of the function of this instrument, the application of which has a restrictive impact on the equality of voting rights in the system of proportional representation. In that context, its percentage was considered and, as a result of the differences in views, an amendment to reduce it to 3% was tabled in a detailed debate, but this was not accepted, since only 19 of the 75 senators present voted in favour of this proposal. However, the constitutionality of the introduction of this closing clause was not questioned during the debate. By Decree No 38 of 9 January 2003, the Senate returned the bill to the Chamber of Deputies with two amendments adopted, but they did not concern the implementation of the closing clause. All 75 senators present have voted in favour of the resolution. The Chamber of Deputies discussed the proposal returned by the Senate at its 10th meeting on 18 February 2003 and, by resolution No 244 of the Bill, it gave its assent to the bill as approved by the Senate.
27. For the sake of completeness, the President of the Senate states that, on 29 May 2014, a group of Senators submitted a draft law (Senate Document No 294, 9th term of office), including a proposal to abolish the closing clause for elections to the European Parliament.
Statement by the Government and the Ombudsman
28. The Prime Minister of the Constitutional Court has informed the Constitutional Court that the Government of the Czech Republic will not exercise its right under Paragraph 69 (2) of the Law on the Constitutional Court and will not enter into this procedure.
29. The Ombudsman also stated that he did not intervene in the proceedings within the meaning of Paragraph 69 (3) of the Law on the Constitutional Court.
Oral proceedings
30. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Active ID of the applicant
31. The Constitutional Court finds that the appellant is the Supreme Administrative Court, which acted pursuant to Article 95 (2) of the Constitution ("If the Court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall refer the case to the Constitutional Court."), further detailed in the provision of § 48 (1) (a) of Act No. 150 / 2002 Coll., the Administrative Rules, as amended by Act No. 303 / 2011 Coll. This issue is addressed by the Constitutional Court in particular in view of the content of the different opinion of some judges of the Supreme Administrative Court who questioned the applicant's active legitimacy.
32. In addition, the Constitutional Court states that the case in question is so-called specific (more precisely: circumstantial; See for example Hesse, K. Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland in more detail. 20th edition. Heidelberg: C. F. Müller Verlag, 1999, p. 282 et seq.) and not abstract standard control. Even in the Czech constitutionist doctrine, there are no more important views that would question this starting point. It is therefore sufficient to quote Mr Holländer, who defines a specific regulatory control as "a procedure for the compliance of a legal or statutory standard with the Constitution in the event that it is initiated by a general court as a result of a solution to a particular matter or by a natural or legal person in connection with their application being affected in their fundamental rights or freedoms. In other words, a specific control of the standards is a constitutional review of laws or other legislation only in the context of the resolution and decision-making of a particular matter" (Basis of the General Government. 3rd edition. Pilsen: Publishing and Publishing Aleš Čenek, 2012, p. 275).
33. The constitutional reason for the proposal is therefore generally given where finding the candidate's nullity as a result of the annulment of the contested provisions of the law should lead to the termination of the mandate already obtained. The proposal of the Supreme Administrative Court pursuant to Article 95 (2) of the Constitution is addressed to this effect.
34. It is therefore justified to consider the appellants to submit a proposal to review the constitutionality of the contested provisions of the European elections law as actively legitimate. The applicant's active legitimacy is given to the importance of the decision of the Constitutional Court to resolve a particular case in the proceedings before the General Court on an electoral complaint lodged and fulfils one of the conditions of the proceedings before the Constitutional Court under Paragraph 64 (3) of the Law on the Constitutional Court.
Assessment of the competence and constitutional conformity of the legislative process
35. The Constitutional Court notes, therefore, that it is responsible for the hearing of the application in question, which was submitted to it by the creditor, is admissible and fulfils all the legal requirements laid down. He was therefore able to make a substantive review of the contested legal provisions, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first addressed the question of whether it was adopted and issued in a constitutional manner and within the limits of the constitutional competence provided for. However, in view of the fact that neither the appellant nor the other parties have been questioned in any way, there is no need to examine in detail the whole legislative process which led to the approval of the contested legal provisions.
36. According to the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with a constitutional order consists of answering three questions: whether it was adopted and issued within the limits of the Constitution, whether it was adopted in a constitutionally prescribed manner and whether its content is in accordance with constitutional laws. In the case of the contested provisions, it is beyond any doubt that Parliament was competent to adopt them within the meaning of Article 15 (1) of the Constitution. As regards the way in which the European elections law was adopted, the Constitutional Court found from the observations of the parties as well as from other publicly available documents relating to the legislative process that the law had been adopted in a constitutional manner. Therefore, nothing prevents the Constitutional Court from carrying out a substantive assessment of the constitutionality of the contested provisions.
Assessment of the constitutionality of the contested legal provisions
37. The constitutional review of the contested provisions of the Law on European Elections is essentially to determine whether the alleged restrictions on the equality of electoral law (Article 21 (3) of the Charter), the citizens' access to elected functions on equal terms (Article 21 (4) of the Charter) and the free competition of political forces (Article 5 of the Constitution or Article 22 of the Charter) are admissible in a democratic society in view of the legitimacy of the objectives pursued by them, the ability to achieve that objective, their need and the degree of such a restriction to conserve the substance and purpose of these fundamental rights (Article 4 (4) of the Charter) and not to change the essential elements of a democratic rule of law (Article 9 (2) of the Constitution). If the alleged restrictions on fundamental rights are justified by the specific position of the European Parliament as representative of the citizens of the European Union, it must be recalled first of all the manifestations of the supremacy of this institution and then the examination of the adequacy of their expression in the European Elections Act, taking into account the reference criteria of constitutional order.
European Parliament
38. The European Parliament - alongside national parliaments, to which Member States' representatives in the European Council and the EU Council are democratically responsible - is one of the pillars of representative democracy in the European Union (Article 10 TEU), as a representative of the public opinion spectrum across the European Union. It does not compete with national parliaments in respect of the citizens of the Member States, since it operates only in the areas of decision-making defined by the scope of the powers whose independent exercise the Member States have given up and entrusted it with the primary law of the European Union (Syllova, J., Pítrová, L., Paldus, H. and the collective. Treaty of Lisbon. Comment. Issue 1. Praha: C. H. Beck, 2010, str. 87). Although the European Parliament does not have (except for exceptions) the right of a legislative initiative or an exclusive position in adopting Union legislation and has not yet become the institutional centre of the political life of the European Union, its role as a source of direct democratic legitimacy of Union decisions is irreplaceable. This was reflected in a certain shift in the concept of his representative position: whereas, before the adoption of the Treaty of Lisbon, he was composed of representatives of the "people of the states associated in the Community '(Article 189 of the Treaty establishing the European Community), after its adoption, it consists of representatives of the" citizens of the Union' (Article 14 (2) TEU). This not only highlighted the political weight of the European Parliament after the adoption of the Treaty of Lisbon, but also strengthened the human rights dimension of European constitutionalism (cf. Silent, L., Arnold, R., Zemánek, J., King, R., Dumbrovský, T. European law. 5th edition. Praha: C. H. Beck, 2015, p. 124 et seq.).
39. This is the form that the European Parliament has come up with with a gradual evolution, which, since the creation of the first of the European Communities - the European Coal and Steel Community - has affected both its composition and its structure and its powers and, finally, its way of establishing it. The predecessor of the current European Parliament was the European Parliamentary Assembly, formed in 1958 as a joint body of the European Economic Community, the European Atomic Energy Community and the European Coal and Steel Community under the Treaty of 25 March 1957 on the common institutions. The name "European Parliament 'settled in 1962. Its members were originally not directly elected, but delegated by national parliaments. Although the role of this body was not a decision-making role, but rather merely a consultation, the potential advantage of such a staff link was a close link between the political agendas discussed at the supranational level and domestic parliamentary debates in the individual Member States, providing information on the creation of Community law regulations and the requirements resulting therefrom for its implementation and application in the Member States. The importance of such a link between the two levels was particularly good at the initial phase of the integration process in the construction of the common market, by facilitating the resolution of the difficult national effects accompanying European Community measures.
40. At the summit of Heads of State in Paris in 1974, a fundamental decision was made to enforce the principle of direct election of Members of the European Parliament with effect from 1 June 1978. Historically, the first direct elections took place on 7-10 June 1979. By 1973, the European Parliament had 142 members, currently the total number of Members is 751 (of which 21 are elected in the Czech Republic). The Treaty on European Union states in Article 14 (2) that the number of Members of the European Parliament may not exceed 750, not including the President.
41. Although the powers of the European Parliament and its position within the institutional system of the European Union have increased considerably since the first direct elections, especially as a result of the emancipation of the European Parliament as a legislator in relation to the Council and in strengthening the democratic legitimacy and accountability of the Union's executive, the standard implementation of the 'major issues' of European policies continues to take place mainly in the European Commission and the European Council. The first clashes on these issues are therefore taking place outside the European Parliament, or at the national parliamentary forums, while the European Parliament will reach a later stage in a professionally demanding, medially but less attractive form. It must therefore consistently face the issue of how, with its structured debates (high number of MEPs, political clubs, committees, etc.), it must draw attention to the wider public, how to communicate with it clearly and to influence the formation of European public opinion, how to give EU citizens the opportunity to express their views on the European Union's activities and to engage in dialogue with civil society, in short, how to consistently fulfil their democratic mission in shaping the European public space. The link between political clubs in the European Parliament and political parties in each Member State is insufficient in the de facto absence of political parties at European level, as reflected in Article 10 (4) TEU. By contrast, standard political parties at national level - thanks to their established organisational structures and access to the media of their activities - are able to influence public opinion much more. As a result of this situation, public interest in the European Parliament, the declining participation of citizens in the European elections, and its debatable de facto legitimacy is noticeable.
The contested provisions and their link with Union law
42. Paragraph 47 of the European Elections Act, which introduced the closing clause for elections to the European Parliament in the Czech Republic, reads as follows:
Procedure for skrutinia
(1) On the basis of the results of the votes taken from the constituencies of the entrusted municipal authorities pursuant to Section 45, the Czech Statistical Office will determine the total number of votes in force which have been cast for all political parties, political movements and coalition.
(2) Every political party, political movement and coalition that has received at least 5% of the total number of votes cast shall proceed to the skrutinia. "
They are followed by the following provisions of Paragraph 48 (1), which states: "The number of valid votes for each of the political parties, political movements and coalitions that have advanced to the skrutinia is gradually divided by 1, 2, 3 and 1 higher respectively."
43. The Constitutional Court further had to address the question of how the closing clause is enshrined in Union law, and how binding the legislature's mandate follows.
44. The current legislation on elections to the European Parliament has evolved from procedures governing the filling of seats in the European Parliamentary Assembly. The Treaty establishing the European Economic Community laid down the design of representatives from among the members of the national legislative bodies and left a substantial part of the mechanism to national legislation. Since the end of the 1970s, the European Communities' efforts to bring the electoral processes in the various Member States closer together as possible by establishing common principles. The result was the adoption of the Act concerning the election of Members of the European Parliament by direct universal suffrage in 1976, later supplemented by Council Directive 93 / 109 / EC, which provided for more detailed arrangements for the exercise of the right of citizens of the European Union to vote and to stand as a candidate in elections to the European Parliament, and by Council Decision 2002 / 772 / EC, Euratom. Although, from the point of view of the form of their adoption, these are secondary law rules, the principles which they provide for in similar cases national, i.e. for elections to national parliaments, are generally adapted at the level of constitutional standards (time range for holding elections, electoral system principles, closing clauses, the possibility of preferential voting, the formation of constituencies, the incompatibility of the exercise of the mandate with other public functions, etc.). However, they do not regulate issues such as the size of the constituencies, the possibility of a preferential vote or the method of allocating mandates on the basis of the number of votes obtained. Therefore, the Council Act is more in the nature of a binding harmonisation Union-constitutional (in the material sense) regulation, such as the successive uniform Statute of Members of the European Parliament (Decision 2005 / 684 / EC, Euratom). Moreover, the provisions on a single procedure or common principles for European elections as provided for in Article 223 (1) TFEU, probably in the form of a generally binding EU Council Regulation, issued on a proposal from the European Parliament, conditional upon the entry into force of which is unanimity in the Council, the consent of the European Parliament given by a majority of its members and approved by the Member States in accordance with their constitutional requirements. These are also preconditions for changes in the primary law of the European Union, carried out through so-called evolutionary clauses (see Article 48 (6) TEU or Article 311 TFEU).
45. In the case of the Act, therefore, it is not a Union soft law recommending a nature without direct commitment and enforceability for the Member States, nor is it a mere international legal obligation whose interpretation and implementation would escape the exclusive powers of control of the European Commission and the Court of Justice. In violation of this commitment, a Member State is subject to sanctions on the basis of Article 258- 260 TFEU if its failure to comply would also entail a serious breach of the values of democracy, the rule of law, human rights, etc., on which the European Union is founded (Article 2 TEU), the use of the remedy mechanism under Article 7 TEU, leading to possible sanctions (suspension of certain Member States' rights) could occur. The general resignation of the Member States in other ways of resolving disputes concerning the interpretation or implementation of Union law other than those provided for in the Treaties (Article 344 TFEU), as well as the dynamically evolving legal concept of Member States' liability for damage caused by infringements of Union law based on Article 340 TFEU, also applies to obligations under the Act. Nor does the residual application of general rules of public international law apply. In the national implementation of the Act, Member States shall be subject to the principle of loyal cooperation, which, in general, pursuant to Article 4 (3) TEU, in particular Article 291 (1) TFEU, is led to the fulfillment of the legislative discretion provided by the Act, which will ensure the full effect of Union rules for the holding of European elections.
46. Article 1 of the Act "1. In each Member State, members of the European Parliament shall be elected in accordance with the principles of proportional representation on the basis of candidate documents or individual transferable votes. 2. Member States may allow a vote on the basis of a candidate instrument with priority votes in accordance with a procedure to be laid down. 3. Elections are held by general and direct voting and must be free and secret." According to Article 3, "Member States may set a minimum threshold for the allocation of mandates. However, that threshold may not be set at national level in excess of 5% of the votes cast. 'Decision 2002 / 772 / EC, Euratom leaves the Member States free, where appropriate, to apply preferential votes and to establish constituencies in which, however, there must always be so many mandates available to voters in order to maintain the principle of proportionality of their division.
47. Since the adoption of national implementing provisions for the Act, including the completion of the legislative discretion of the national legislature, "the application of 'Union law within the meaning of Article 51 (1) of the Charter of Fundamental Rights of the European Union (hereinafter referred to as" LZPEU'), may in principle contribute to the review of the constitutionality of those rules in the Member States, together with the constitutional order reference criteria, according to their nature, to the provisions of LZPEU, whether through the transposition into constitutional order or direct application in the case of a higher level of protection provided by them (Article 53 LZPEU). This concerns the right of EU citizens to vote and to stand as a candidate in elections to the European Parliament (Article 39 LZPEU). On the other hand, the principles, sometimes formulated as a "right 'of individuals, which are primarily addressed to the legislative and executive bodies of the European Union and the Member States, may be invoked before Union or national courts only for the purposes of interpreting and checking the legality of acts adopted by those authorities (Article 52 (5) LZPEU). This applies to the requirement that political parties at European Union level should contribute to expressing the will of EU citizens (Article 12 (2) LZPEU, Article 10 (4) TEU), as well as to the right of every citizen to participate in the democratic life of the European Union (Article 10 (3) TEU). The provisions on equality before the law (Article 20 LZPEU) promote equal treatment in access to the rights provided for by European Union law and the implementation thereof by the Member States and include general legal principles:" However, direct actions requesting action by the institutions of the Union or the authorities of the Member States, which corresponds both to the case law of the Court of Justice... and to the approach of the constitutional systems of the Member States to the principles'... '[see the explanation of the Charter of Fundamental Rights of the European Union (2007 / C 303 / 02), to Article 52 (5)]. Restrictions on the exercise of fundamental rights guaranteed by the LZPEU shall be allowed under conditions more detailed than those laid down in Article 4 of the Charter: it must be provided for by law, respect the substance of those rights and "[P] while respecting the principle of proportionality, such restrictions may be introduced only if they are necessary and if they actually meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of the other' (Article 52 (1) LZPEU).
48. The law of the European Union does not require the Member States to conclude a clause, but if a Member State at national level or within the constituencies (if any) takes action, it must not exceed 5% of the votes cast. More intensive intervention in electoral law might no longer be in line with the principle of proportional representation, free competition of political parties and equal access of citizens to elected functions in the context of other parameters of the electoral system. The national regulation of the conclusion clause for European elections is therefore not a fully autonomous legislative measure of a Member State, since its initial legal basis and limit are the law of the European Union, which sets out not only the regulatory framework for specific European elections at national level but also authorises Member States to adopt them (Article 8 of the Act). The Constitutional Court considers that the meaning and purpose of the Union's regulation lies in authorising the national legislature to set conditions for elections to the European Parliament, which will reflect, in view of local circumstances, the requirement for proportional representation, as formulated by the Union's regulation, irrespective of the conditions laid down for elections to national representative bodies. The Constitutional Court sees this restriction on the autonomy of the national legislature as a necessary step towards a uniform procedure or the adoption of common principles for the European elections foreseen in Article 223 TFEU, which is designed to strengthen the democratic legitimacy of the normative process in the European Union.
49. The Constitutional Court also addressed the question of whether the abolition of the closing clause in the European Elections Act, while maintaining it for election to the national representative corps, would not infringe the principle of equivalence as a cross-cutting principle for the entire institutional framework, ensuring the national application of Union law (see, for example, Bobek, M., Bříza, P., Komárek, J. National application of European Union law). Prague: C. H. Beck, 2011, in particular p. 229 et seq.). According to this principle, the law of a Member State must not provide for discriminatory periods, processes or conditions for the application of Union law standards compared with those of national standards, processes and conditions. In addition, the Constitutional Court notes that the closure clause is an institute which plays a different role in the various elections. However, this interference in the equality of electoral law must always be sufficiently defended by the particular public interest or value which are capable of convincing the resulting disproportion. However, the Constitutional Court lacks the full comparability of the two situations, since, contrary to the elections to the European Parliament, Union law does not guarantee the citizens of other Member States resident in the Czech Republic any access to elections to the Parliament of the Czech Republic, although it is involved in the application (legislative implementation) of Union law to a significant extent. Therefore, the possible abolition of the closing clause in the European Elections Act would not, from this point of view, constitute an infringement of the principle of equal treatment.
50. From a comparative point of view, from today's 28 European Union countries, there are closing clauses in 14 countries (Czech Republic, France, Croatia, Italy, Cyprus, Lithuania, Latvia, Hungary, Poland, Austria, Romania, Greece, Slovakia and Sweden). In some of these, this clause is set below 5%: in Italy, Austria and Sweden at 4%, in Greece at 3%, in Cyprus at 1,8% (http: / / europarl.europa.eu / resources / library / media / 20140331RES41123 / 20140331RES41123.pdf). The Federal Constitutional Court in Germany, which accounts for the highest number of mandates (96), the closing clause, originally 5%, later 3%, completely annulled (BVerfG 2 BvC 4 / 10 and others; BvE 2 / 13 and others). It can be agreed with the appellant that for smaller Member States where the legal closure clause is more or less close to the so-called natural threshold, its practical importance is reduced to a psychological effect for voters. On the other hand, there has been an increase in the natural threshold in the introduction of several smaller constituencies in other countries, which can be seen as proof that, despite the low level of the closing clause, they still consider national integration incentives to be essential. More constituencies are Belgium (3), France (8), Ireland (4), Italy (5), Poland (13) and United Kingdom (12) (closer to e.g. Onion, L. and collective. Optimized the model of the electoral system for the Európsky Parliament. Bratislava: Komenský University, 2010; Sharadin, P. and the collective. European Parliament elections in the Czech Republic. Periplum, 2004). The Member States in which the closing clause is applied and which therefore attach importance to the integration function of artificial intervention in the equality of electoral law are 380 (out of a total of 751) mandates in the European Parliament. Reducing this proportion would have a clear disintegration effect on shaping the will of this representative body.
51. The constitutional review of the contested closure clause in the European Elections Act should therefore be focused on the question of whether the legislator has used the scope which the Act has provided for it to be implemented in a constitutional manner, in order to be consistent with the principle of proportional representation and in the light of the fundamental rights in question guaranteed by the Charter or by the LZPEU.
Equality of electoral law, free competition of political parties and equal access to elected functions
52. The key objection raised by the appellant against the contested legal provisions concerns the permissible restriction of the equality of voting rights guaranteed in Article 21 (3) of the Charter, the free competition of political parties under Article 5 of the Constitution and Article 22 of the Charter and equal access to elected functions under Article 21 (4) of the Charter.
53. In addition, the Constitutional Court states first of all that the constitutional order of the Czech Republic does not explicitly lay down the form of an electoral system for elections to the European Parliament. Contrary to the elections to the Chamber of Deputies and the Senate, where the Constitution defines (Article 18), together with the fundamental principles of electoral law, and according to which electoral system to be elected, the legislator respects the fact that the determination of their parameters is primarily a matter of Union law, in a level of implementation then of the "ordinary" legislator. However, this observation does not mean that none of the constitutional rules for election to national representative corps - apart from fundamental rights in the Charter - could be used as a reference criterion for the constitutional review of the European Elections Act implementing the Act.
54. This applies both to the rules for elections to the Parliament of the Czech Republic and to the local authorities' councils pursuant to Article 102 (1) of the Constitution. In the case of elections to the Chamber of Deputies, the association with the system ("according to the principles") of a proportionate representation, which means, in a pure form, the division of mandates between political parties according to the ratio of votes obtained, leads to a modification of the principle of equality (in terms of the same weighting of individual votes in the result of the vote) as a result of a correction of full proportionality, whose lack of integration function would otherwise mean the political fragmentation of the chamber and the difficult creation of small stable governments. As the Constitutional Court has repeatedly judged, "the principle of equality does not have an absolute (abstract) character, it is only relative equality. It cannot therefore be understood mechanically, even as a special case of equality. In certain cases, even certain restrictions on the equality of voting rights are acceptable (see page sp. zn. ÚS 25 / 96 above). This specific equality is particularly apparent on issues such as closing clauses, conditions for the submission of candidate lists, election campaigns, election geometries and election arithmetic [paragraph 60 of the judgment of 29 March 2011, sp. zn. ÚS 52 / 10 (N 56 / 60 of SbNU 693)]. As the Constitutional Court further pointed out," The principle of equal electoral law must be understood as having the same number of votes as any other, but not as having the same weight in relation to the final election result (number of mandates obtained) '(paragraph 61 above).
55. However, such a correction of electoral differentiation, in particular by means of the statutory closing clause, must not defuse the substance and meaning of equality of electoral law or limit the democratic nature of the elections [the findings of the sp. zn. Syllova, J. In Sládeček, V., Mikule, V., Syllova, J. Constitution of the Czech Republic. Comment. Issue 1. Praha: C. H. Beck, 2007, p. 158]. The legal regulation of electoral law must allow and protect the free competition of political forces in a democratic society (Article 22 of the Charter), which provides for equal access to the assessment of the candidate parties' entitlement to electoral success corresponding to the votes cast. However, in carrying out this task, the legislator has some room for manoeuvre to weaken the principle of formal electoral equality in favour of legitimate reasons, such as the creation of an efficient and functional representative body and mechanisms for integration of political will creation, which is accepted by the Supreme Administrative Court or the German Federal Constitutional Court (Šiměl, V. In Wagner, E., Šiměl, V., Langášek, T., Pospíšil, I. and the collective. The Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer, 2012, str. 505). Similar conclusions may also be drawn in relation to the passive right to vote in his custody to the right of equal access to elected functions.
56. The Constitutional Court believes that "democratic and human rights mandates" limits the legislature by analogy, even when setting the parameters of electoral law for elections to the European Parliament, since even here it is the exercise of subjective constitutional law, although the extent of its limitation may not necessarily be the same in both cases - taking into account the differences between national and supranational councils. European Union law does not regulate the principle of equality for elections to the European Parliament, since the representation of citizens - seen throughout the European Union - is ensured in a proportional descending manner, determined for each Member State on the basis of a decision of the European Council pursuant to Article 14 (2) TEU, by the number of mandates in proportion to their population. This so-called degressive proportionality of representation is not necessarily necessary, yet it may indirectly be reflected in the national regulation of European elections by the fact that, in the most populous Member States, such as Germany, where the nominal number of votes per voter in a Europe-wide comparison is the lowest, it is understandable to try not to deform their weight by introducing or maintaining artificial restrictions on the type of closing clause. However, this problem does not concern the Czech Republic as a mid-size country, whose voters' vote in the elections to the European Parliament is not fundamentally distorted as compared to more populous countries.
57. The Charter of Fundamental Rights of the European Union provides each citizen with the right to vote for Members of the European Parliament 'in direct and universal suffrage by free and secret ballot' under the same conditions as nationals of the Member State in which he resides (Article 39 LZPEU), but does not guarantee him an equal share of the election result under the electoral legislation adopted to implement the Act in each Member State. Thus, non-discriminatory access to the European elections merely gives rise to the fundamental right of EU citizens to reside freely within the territory of a Member State other than that of its origin (Article 45 (1) LZPEU). The reference criterion of the constitutional review of national laws on European elections in terms of equal participation in the electoral outcome is only the standard of constitutional order and the requirement of proportionality of the electoral system established by the Act.
58. Moreover, from the point of view of constitutional order and European constitutionality, this is a two-only process of exercising public power, the source of which is both the people and the intermediaries of the authorities of the legislature (Article 2 (1) of the Constitution) - Parliament of the Czech Republic and, respectively, the European Parliament, authorised by an international treaty pursuant to Article 10a of the Constitution on the basis of the delegation of certain powers. For the protection of constitutionality referred to in Article 83 In both cases, the Constitution is equivalent to the reference criteria, even though the extent to which they tolerate the restriction of constitutional rights may be different, given the specific circumstances of the representative body, as mentioned above, in each case. From point 68 of the above mentioned finding sp. zn. On the natural threshold in the elections to the Chamber of Deputies, where the proportional electoral system of the Constitution is prescribed, the Constitutional Court expressed its views on the findings of the sp. zn. In both, he said that only exceeding the 10% clause can be considered as such an intervention in a proportionate system that threatens its democratic substance. It can therefore be agreed with the dissenting judges of the appellant that it is not clear what the reason should be for setting a more stringent standard for elections to the European Parliament, moreover, in a situation where the Constitution, as in the regional or municipal elections, does not explicitly prescribe a proportionate system and, on the contrary, the European law expressly admits the closing clause.
59. In the case of the principle of equality, it should be noted that it immediately follows the principle of universality, since, when the universality of electoral law defines who participates, equality decides on the extent and importance of such participation. In particular, this principle means that 1. Each voter has the same number of votes (one man - one vote; equal voting rights) and 2. The voter's vote is to have the same weight (one man - one value; equal voting power), independently of his education, property, nationality, condition, sex etc. Similarly, the Constitutional Court has in the past stated (see sp. zn. The first aspect is to compare the weighting of individual votes. The weighting of individual votes shall be assessed on the census and in the outcome of the vote. The equality of electoral law requires that when counting all votes are applied equally, i.e. they have the same weighting (quantitative equality) and the same severity, and that the census allows for the exact numerical differentiation of the electoral corps, i.e. the exact calculus, to identify 'support' for voters to individual candidate lists. The second aspect of equality of electoral law captures equality of vote in terms of democratic principle, i.e. in terms of entitlement to the votes cast for the different candidate lists, to a degree of electoral success that is proportionate to the number values achieved in the elections. It is therefore a claim for such an assessment of the outcome of the vote, which is based on an equal approach to assessing the candidate parties' entitlement to success and thus entitlement to proportional, i.e. the ratio of the votes cast corresponding, number of mandates. '
60. The Constitutional Court recalls that the quoted requirements for equality of electoral law in its structured form also stem from the Code of Good Practice in Electric Matters, European Commission for Democracy through Law (Venice Commission), CDL-AD (2002) 23, hereinafter referred to as "the Code '. At his point 2 is anchored both the mentioned equal voting rights and also the equal voting power. The second requirement requires an equal distribution of mandates between constituencies, the criterion of which may be the population, citizens, registered voters or the votes cast. A certain degree of inequality is accepted, for example for historical, geographical or administrative reasons. However, the tolerance from the average should not exceed 10% and must not exceed 15% (except in specific circumstances - e.g. protection of a minority concentrated in a particular territory or sparsely populated administrative unit). The Code provides for another aspect of equality, namely equality of opportunity. This is meant by guaranteeing the candidate parties and candidates in terms of the neutrality of state power, particularly in the election campaign, access to the media and public funding of parties and campaigns.
61. If we leave aside the above-mentioned Union distortion of the voting rights of EU citizens, there is no dispute that the first of the two aspects of equality - nominally the same vote - has not been challenged by the contested provisions, since for elections to the European Parliament, too, every voter has only one vote (see Section 37 (1) of the European Elections Act). However, for the second requirement - the same real weight of all votes cast is more complex.
62. However, the Constitutional Court considers it important to state that strict duration for maintaining the very same weight of all votes cast is not possible. If the electoral legislator wanted to have this ambition, then it would be virtually impossible, for example, to choose according to the principles of the majority system, because this is conceptually (and in its purest form) based on the idea of "winner takes all," i.e. the votes cast for other candidates are necessarily failing and do not have the same real weight as the votes cast for the winner. Therefore, for example, German professional literature and case-law distinguish between the equality of the numerical value of each vote (Zählwert), which must be maintained in each electoral system, and between the equal chance of each vote to succeed (Erfolgswert), which is typical only of the proportional representation system (Schreiber, W. Handbuch des Wahlrechts zum Deutschen Bundesstag - Kommentar zum Bundeswahlgesetz. 7. Carl Heymanns Verlag, 2002, p. 106).
63. The Constitutional Court considers the appellant to be undisputed, which points to the inequalities arising from the allocation of mandates. The official website of the Czech Statistical Office (http: / / www.volby.cz / pls / ep2014 / ep141? xlanguage = CZ) shows the following list of pages and movements that have advanced to skrutinia:
| Strana | Platné hlasy | ||
|---|---|---|---|
| číslo | název | abs. | v % |
| 16 | ANO 2011 | 244 501 | 16,13 |
| 7 | TOP 09 a Starostové | 241 747 | 15,95 |
| 14 | Česká strana sociálně demokratická | 214 800 | 14,17 |
| 10 | Komunistická strana Čech a Moravy | 166 478 | 10,98 |
| 5 | Křesťanská a demokratická unie - Československá strana lidová | 150 792 | 9,95 |
| 20 | Občanská demokratická strana | 116 389 | 7,67 |
| 24 | Strana svobodných občanů | 79 540 | 5,24 |
64. In the light of the order of the shares of votes on the basis of which the mandates were allocated to each party and by the movement according to the method used in Section 48 (1) of Act No. 62 / 2003 Coll., on the election to the European Parliament and on the amendment of certain laws, as amended by Act No. 58 / 2014 Coll., in the absence of a closing clause, the number of votes which, according to the Communication of the State Election Commission No. 92 / 2014 Coll., would have been sufficient for the Czech Pirate Party (72 514) to make a profit in the order of the 15th mandate and the Green Party (57 240) to reach the 19th mandate. These parties thus received in the elections 914 (Czech Pirate Party) and 1,748 (Green Party) more than the number of successful parties converted to these mandates (ČSSD - 71 600; KDU- ČSL - 55 492). From this point of view, due to the closeness clause, there was a certain disproportion in the weight of the votes obtained which, in one case, exceeded the 15% margin indicated as still acceptable by the Codex.
65. The equality of electoral law, the principle of free competition between political parties and the right of access to elected functions on equal terms have their own immune boundaries where their unlimited application would impede the effective participation of citizens in the democratic life of society (state, European Union) and significantly restrict the possibility, or even prevent, of combining different particular interests in practical policies capable of solving problems which are common to carriers of these interests. The appellant's objection to the rationale of the conclusion clause in the European Elections Act therefore focuses on whether such a restriction, without compensation, eliminates the real opportunities for citizens to participate, through the European Parliament, in the joint exercise of public authority entrusted to the supranational level, whether it has a neutral effect or even strengthens the real use of these opportunities.
Reasons justifying the legislator's intervention in equality of electoral law, free competition of political parties and equal access to elected functions
66. The Constitutional Court also addressed the question of whether there are legitimate reasons to justify intervening in electoral law for elections to the European Parliament through an artificial closure clause. The relevant case law of both the Constitutional Court and the doctrine accept a reasonable derogation from the principle of absolute equality of electoral law, provided that sufficient grounds of public interest are given for this. In this respect, the Constitutional Court points in particular to the finding of the sp. zn.
67. Such a serious reason is the need to create a functioning European Parliament capable of generating a clear majority will as an expression of a democratic principle. In dealing with the conflict between constitutional principles (here: protection of fundamental rights v. the principle of democracy), it is necessary to base itself on the rule of so-called practical concordance, which results from the requirement of unity of the Constitution and eliminates the unilateral preference of one of the principles at the expense of another (i.e. the result of "zero- sum '), but maintains the maximum on each side of the conflict with the result of" win- win' (Dörr, O., Gote, R., Marauhn, T. (Hrsg.). EMRK / GG. Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz. Issue 2. This Decision shall enter into force on the date of its adoption.
68. That is why the Constitutional Court also accepted (sp. zn. Pl. ÚS 42 / 2000) some restriction of differentiation in the division of mandates under Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and on the amendment and addition of some other laws, as amended, (hereinafter referred to as "the Act on Elections to Parliament of the Czech Republic '), because" the purpose of elections is not merely to express the political will of individual voters and to obtain only a differentiated mirror image of the opinion currents and political attitudes of voters. Because the people are also the executor of state power... and because the exercise of state power presupposes the ability to take decisions, elections and the electoral system must also have the ability to take such decisions on the basis of the will of the majority. A coherent proportional picture of the voting results in the House's composition could create a political representation divided into a larger number of small groups with diverse interests, which would make making the majority much more difficult or completely impossible. Thus, at the stage of the electoral process in which mandates are distributed, the principle of differentiation is met by the principle of integration, since elections are intended to give rise to a House which, by its composition, allows the formation of a political majority capable of creating both the government and the legislative action which it is responsible for under the Constitution. Therefore, from the point of view of the principle of representative democracy, it is permissible to put in the electoral mechanism itself certain integration incentives where there are serious reasons for doing so, in particular provided that an unlimited proportional system separates the votes between a large number of political parties, the impasse, the overgrowth of political parties, thereby endangering functionality and action, as well as the continuity of the parliamentary system. In this fact, the admissibility of the existence of a restrictive clause is, however, conditional in any case, only on serious reasons and justified only by a particularly intense seriousness at a stage of increasing boundaries. The increase in the limit clause cannot be unlimited, so for example, 10% of the clause can already be considered as an intervention in a proportional system that threatens its democratic substance. "
69. Similarly, in the case of the closing clause in the elections to the municipal councils, the Constitutional Court stated [resolution sp. zn. IV. ÚS 54 / 03 (see above)] that "even in relation to the election of the municipal council, the argument that, in terms of equality in entitlement to be taken into account in a reasonable (proportional) way in terms of terms of reference in terms of terms of reference is necessary and therefore permissible. The purpose of the vote is undoubtedly to differentiate the electoral corps. However, the aim of the elections is not merely to express the political will of individual voters and to obtain only a differentiated mirror image of the currents and political attitudes of voters. Even in the case of municipal councils, it is true that a coherent proportional picture of the voting results in the council composition could arise from a political representation split into a larger number of small groups with diverse interests, making the creation of the majority much more difficult or impossible. On the other hand, it is always, of course, necessary to measure whether limiting the equality of electoral law in the form of a restrictive clause and its modification is a minimum measure necessary to ensure the degree of integration of political representation required to enable the composition of the representative body to form the majority or the majority needed to take decisions. This question can be answered in the present case. '
70. Against the background of this case-law, the Constitutional Court notes that, over time, especially after the adoption of the Treaty of Lisbon, the European Parliament has been strengthened mainly in the exercise of its legislative powers. As part of the so-called ordinary legislative procedure under Article 294 TFEU, which has become the rule of norm in the vast majority of areas of Union policies, ex aequo co-decides with the Council on the adoption of European Union legislation. It has an even stronger position when adopting the annual budget of the European Union under Article 314 (4) TFEU. However, his position may be weakened if he is unable to deliver an opinion within the prescribed period. The consent of the European Parliament is also needed when concluding international agreements in the areas of Union policies where the ordinary legislative procedure is used for the adoption of decisions (Article 218 (6) TFEU). It also has the powers of a "constitutional" nature: it may submit proposals to amend the Treaties and participate in the Convention (if convened) to discuss such proposals (Article 48 (2) and (3) TEU). The European Parliament's agreement also needs to be applied to the so-called transitional clauses on the basis of a decision of the European Council under the simplified procedure for the adoption of amendments to the Treaties (Article 48 (7) TEU), etc. The absence of exclusive power to submit legislative initiatives is a specific expression of the so-called Community method of creating Union law, where the European Commission has the primary responsibility for establishing a legislative agenda. However, with its legislative initiatives, the European Parliament may address it, with the European Commission having to respond to it (Article 225 TFEU), because otherwise it would have committed a qualified inaction, which would have been an action against the Court of Justice of the European Union under Article 265 TFEU. The mechanical comparison of the functions of the European Parliament with that of national parliaments, the underestimating specificity of the representation of the interests of the Member States (Council), the citizens of the Union (European Parliament) and the European Union as a whole, is not appropriate. On the contrary, there is a requirement for the European Parliament's capacity to achieve consensual solutions that meet the expectations of Czech voters who have entrusted the exercise of part of their sovereign power (Article 2 (1) of the Constitution) to this very body.
71. Similar applies even if it is a creative function. On a proposal from the European Council, adopted taking into account the outcome of the elections to the European Parliament, the institution shall elect the President of the European Commission and then approve its composition. The European Commission is responsible as a body for the European Parliament, which can express its mistrust and thus force it to resign (Article 17 (7) TEU). Moreover, in the 2014 European Parliament election campaign, they were designed for the first time by participating political groups, formed informally across Member States, candidates for the presidency of the European Commission. The election of the candidate for the winning grouping by the President of the European Commission was then a genuine political choice on the ground of the European Parliament, which gave the European Commission a strong democratic mandate. Its ongoing confirmation then requires permanent support for a stable majority of Members of the European Parliament, as a majority of all its members are sufficient to express their distrust of the European Commission on the basis of a proposal adopted by a two-thirds majority of the votes cast. Taking into account that the current European Commission has been elected 56.3% of the votes coming from the three largest political factions, which is almost 9% less than the last European Commission, it is clear that the fragmentation of the political spectrum represented in the European Parliament as a result of the arrival of new, programme-oriented, quantitatively marginal, and therefore, its influence on weak political entities can become a serious threat to the stability of the Union's executive. Members of these groupings may, in summary, represent a force sufficient to destabilise the Union's executive, but not strong enough to create their own 'European government'. This destructive potential of the European Parliament can then lead to stalemate, well known from the parliamentary practice of a number of Member States, for the European Union - given its incomparably greater political responsibility for the entrusted agenda - but incentives that are extremely risky. The strengthening of the European Parliament's creative function in relation to the Union's executive role therefore requires more than before its ability to create reliable majority, which will guarantee the fulfilment of the aspirations of voters expressed as an act of self-determination as carriers of sovereign power under Article 2 (1) of the Constitution.
72. The experience of the last European elections has thus confirmed the increased importance of stable voting conditions and the strengthening of political polarisation in the European Parliament, which justifies existing restrictions on proportional representation in the European Elections Act. The non-weakening of these integration stimuli by rejecting the proposal to abolish the closing clause, which will lead to the reduction of the spectrum of interest representatives of Czech voters, is therefore a permissible and proportionate interference in the constitutionally guaranteed equality of electoral law and the principle of free competition of political parties.
73. The Constitutional Court further noted that discipline in the vote of MEPs is falling with the size of the political groups of the European Parliament. While the factions of the European People's Party (221 members) and the Group of the Progressive Alliance of Socialists and Democrats (191 members) reach a single vote of 90 to 92%, the factions of the European United Left (52 members) and the Europe of Freedom and Direct Democracy (48 members) reach only 79% and 49% respectively, for non-attached Members (52) then the consistency of the vote cannot be discussed (Kreilinger, V. Prognosen zur Zusammensetzung und Arbeit des Europäischen Paramits nach der Wahl 2014. Integration 2014, p. 9). The non-limitation of the vote's weight as a result of the abolition of the closing clause would lead to the dispersal of mandates obtained by small parties in particular in the factions of the European Parliament, the real weight of which is precisely because of the low voting discipline of their members. This would weaken the effectiveness of the electoral act as a manifestation of the will of the citizen or of the people as the original source of public authority within the meaning of Article 2 (1) of the Constitution.
74. If the Constitutional Court found that the democratic processes at Union and national level are complementary and conditional on each other (Treaty of Lisbon II, paragraph 139) of 3.11.2009 (N 233 / 55 of the SbNU 197; 387 / 2009 Coll.) and that the principle of representative democracy is one of the common principles of organisation of larger entities of both the interstate and non-state types, then this does not mean that the power of the Union pillar of representative democracy, made up of the European Parliament, does not matter so much if it is complementary to national parliaments. The "decisive responsibility 'model of the national parliament for European integration (" Integrationsverantwortung'), which largely resigns to the democratic-legitimacy role of the European Parliament, as put forward by the German Federal Constitutional Court in its "Lisbon 'finding, is hardly compatible with this judgment of the Constitutional Court. The amendment of the principle of proportional representation as a result of the continued application of the closing clause in the European elections law strengthens this line of reasoning of the Constitutional Court.
75. The conclusion that the European Parliament deserves the designation of a real 'Parliament' is also based on the case law of the European Court of Human Rights (hereinafter referred to as' the ECHR '). In the judgment of the Grand Chamber of Matthews against the United Kingdom (of 18 February 2009 No 24833 / 94), that is, long before the adoption of the Treaty of Lisbon, it stated that the European Parliament is a "legislative body' within the meaning of Article 3 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (" the Convention '). The ESLP has opted here for an evolutionary interpretation of the Convention, not to testify to the British Government's objection that the Additional Protocol cannot apply to the European Parliament, since this institution did not exist at the time of its adoption. According to the Court - which came from the development of the legislative powers of the European Parliament at the time, particularly after the effectiveness of the Single European Act and the Maastricht Treaty - it is certainly a' legislative body 'and the very fact that it is transnational and not national, cannot exclude it from this definition. The ECHR also stated that "given the context in which the European Parliament is working, the Court of First Instance is convinced that the European Parliament is a fundamental instrument of democratic and political responsibility in the Community system. The Court of First Instance finds that, notwithstanding certain restrictions, the European Parliament, which derives its democratic legitimacy from direct elections on the basis of universal voting law, must be seen as the part of the structure of the European Communities which best reflects an interest in effective political democracy' (§ 52).
76. It therefore remains to be answered whether the Czech regulation of the European elections, if it did not contain a closing clause of 5%, could, given the number of 21 MEPs, jeopardise or significantly weaken the functions of the European Parliament which make it a real 'Parliament', and therefore, in view of the constitutional guarantee of the proper exercise of powers delegated to the supranational level, this regulation should be maintained unaffected.
77. In this respect, the Constitutional Court states that consideration of the integration or differentiation effects of electoral rules can only be taken by the optics of the collective body as a whole, not from the perspective of its sections chosen by the Member States. The particular nature of the Member States' commitment of loyalty in relation to the European Parliament's capacity to act (not comparable to the principle of pacta sunt servanda international law) is that it is a multilateral erga omnes commitment to the joint (solidarity) responsibility of all Member States for the breach of any of them. Thus, the guarantee function of Article 1 (2) of the Constitution should be viewed. This commitment is incompatible with the consideration of a "stowaway," which will abolish national measures preventing the fragmentation of the European Parliament with reference to the negligible impact of this step on the whole. Any subsequent follow-up would no longer have a negligible negative impact. In this respect, the assessment of the proposal by the Constitutional Court was guided by restraint in relation to the legislator, who is also to be able to assess the international (European) aspects of his legislative activity.
78. The de facto absence of European political parties, the constitution of which is foreseen by Article 10 (4) TEU, with a membership base at national level of the European Union makes it difficult for the information link between the legislative bodies. The national implementation of Union legislation, which is one of the main obligations arising from membership ("Member States shall take all necessary national legal measures to implement legally binding Union acts. ', Article 291 (1) TFEU), at the constitutional level guaranteed by Article 1 (2) of the Constitution, therefore places significant demands on representatives in national parliaments to understand the European Parliament's agenda. However, Members of the European Parliament are also faced with the requirement to understand the functioning of national legislative provisions and procedures. Removing the closing clause in the European elections act while maintaining it for elections to the Parliament of the Czech Republic could make these processes of mutual knowledge more difficult, especially in the light of the fact that the Union's regulation of the European elections since 2004 no longer allows personnel links between national parliaments and the European Parliament (Article 7 (2) of the Act, as consolidated).
79. While the integration of political forces in the European Parliament takes place across national continents, even a single Member elected as a party in a state can thus become part of a large fraction of programme-close political parties, while a large group of members of a strong national party may not reach a programme consensus with any of the political factions of the European Parliament and thus constitute a disintegration element. The restrictive effect of the closing clause prevents the occurrence of formally classifiable, but from the point of view of the real political influence of marginal soliders. Although the votes cast in the elections would not fall to such an extent in the relative electoral system without the closing clause, the representation of the will of their voters would not correspond to the constitutional principle of effective political democracy, which ("effective political democracy") also advocates, inter alia, the European Court of Human Rights (ESLP No 66289 / 01, Rep. 2005- I, § 41 - Py v France).
80. It has not yet been possible to verify how the partial strengthening of the pluralism of political representation after the 2014 elections, as a result of the abolition of the German closing clause (compared to 7 political parties in the previous parliamentary term, 14 parties are now represented and the movement, half of which has only one euro Member), has also increased the pluralism of opinion in the European Parliament with more than 160 political actors. Rather, there is a lack of a reasonably small number of competing opinions capable of creating functional compromises based on majority will. This only confirms the assumption that the free competition of political forces, which underpins every democratic constitutional system, is not conditional on maximising the number of actors participating in it. However, the necessity and extent of its possible limitation are primarily for the legislator's assessment.
81. The Constitutional Court also based its reasoning on the fact that in addition to the fixed artificial closure clause, the so-called natural threshold and other factors capable of strengthening the integration function of the electoral system (e.g. setting up a contribution to the cost of the election campaign) operates in the Czech Republic. This de facto constitutional instrument is an important indicator for assessing the proportionality of electoral systems and, in particular, the representation of small parties, as it gives the smallest possible percentage of votes that a party in the constituency must obtain in order to obtain at least one mandate. The amount of the natural threshold is not known in advance and depends on multiple variables factors, especially the number of distributed mandates (see Lebeda, T. Natural threshold of proportional systems, theory and reality. Political journal No 2 / 2001, p. 134 et seq.). In the 2014 elections to the European Parliament (without the closing clause), an election profit of 3,77% of the valid votes of the Green Party would be sufficient to obtain one mandate; On the contrary, the Dawn of Direct Democracy, with 3.12% of the votes in force, would no longer be sufficient to obtain a mandate. In other words, given the 21 mandates assigned by the European Council to the Czech Republic, a certain integration element is already given in the existence of this de facto threshold. Thus, even if there were no artificial closure clause at all, only those parties who would receive about 3.5% of the votes would have a real chance of winning the mandate.
82. The Constitutional Court agrees on this issue with the different position of judges of the Supreme Administrative Court, because if the natural threshold for the election of a Member of the European Parliament was 1 / 21, i.e. about 4.76%, the artificial threshold (closing clause) would indeed lack meaning in the Czech system. However, the natural threshold for obtaining a mandate is variable and lies below 4%. In the current situation, it is evident that the abolition of the artificial clause would result in the Czech Republic sending representatives of the nine parties, almost a third more, to the European Parliament instead of representatives of seven parties. In addition to the effect of "overpopulation" of political parties, such a situation would also weaken their position in the political factions of the European Parliament. The European Parliament elections in 2014 were already third in the Czech Republic. At the same time, the experience gained has shown that the closure clause has in no way limited the diversity of political representation of citizens. If six political parties and movements qualified for the European Parliament in the 2004 elections, and in rather exceptional elections in 2009 there were only four parties, then in the 2014 elections, the diversity of the Czech electoral system was demonstrated by the success of seven parties and the movement. The success of the Free Citizens' Party shows that the 5% closure clause does not constitute an insurmountable obstacle, giving exclusivity only to large, rich or traditional parties. This development is not contrary to the principle of free competition for political forces under Article 5 of the Constitution or Article 22 of the Charter.
83. However, the integration effect of the so-called natural threshold is eliminated by the fact that its level is not known in advance and the normal electorate is not even known for its existence. On the other hand, the legal closure clause is known in advance, and its psychological effect works, since, on the one hand, it may discourage the choice of those parties whose preferences are longer below its level, but on the other hand, it also increases the pressure on voters' behaviour according to their political preferences. Only a voter acting in accordance with his inner beliefs is the real basis for the democratic organisation of society.
84. Although the integration or disintegration of political parties depends mainly on the factors of political culture in Czech parliamentary democracy and on the degree of credibility of individual players in the political forces competition, (not) proven in the country's daily political life, it is precisely the closing clauses that play an important role in this development: the need to overcome the barriers set by them makes the applicant a valid support for the state, as well as a supranacially structured union. The Constitutional Court also refers to its resolution rejecting the proposal to abolish the closing clause in the Act on elections to the Parliament of the Czech Republic (Resolution sp. zn. Pl. ÚS 2 / 14 of 19 August 2014 (in SbNU not published, available at http: / / nalus.ujud.cz)): "The functioning of electoral systems at national level can no longer be assessed on its own. It gradually becomes an integral part of the principle of representative democracy in a multi-level union between the European Union and its Member States, whose functionality as a whole is also a precondition for the proper conduct of democratic processes at national level." All that remains to be said is that the importance of stability in the outcome of elections for public confidence in the system of representative democracy is essential both at national and supranational levels. Creating a reliable majority will in the European Parliament, enabled by the appropriate setting of the rules of the electoral system, including the so-called closing clause, is an important prerequisite for the continuity of legislative procedures in the European Union, for the good functioning of its executive and, on this basis, for the conviction of citizens of the meaning of their participation in the electoral act.
85. The Constitutional Court found restrictions on the equality of electoral law, the free competition of political parties and equal access to elected functions, guaranteed by the Constitution and the Charter, as a result of the so-called closing clause in the European Parliament elections law compatible with the principles of a democratic constitutional state. It is a measure of an adequate, non-contrary principle of proportional representation, capable of contributing effectively to the achievement of these principles of the objective pursued - an effective representation of the will of citizens in the European Parliament and necessary for the proper exercise of the powers conferred on it under Article 10a The Constitution, while respecting the requirement to minimise interference with fundamental rights and the constitutional principles concerned.
Conclusion
86. Since the contested provisions do not conflict with Article 5 of the Constitution or Articles 21 (3) and (4) and 22 of the Charter, there are no grounds to repeal those provisions. According to Article 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court therefore rejected the proposal of the Supreme Administrative Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the full Judge Kateřina Šimáková, Vojtěch Šimělek and Milada Tomková took a decision.
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Regulation Information
| Citation | The Constitutional Court found No 176 / 2015 Coll., on the application for annulment of Sections 47 and 48 (1) in words "which advanced to Skrutinia," Act No. 62 / 2003 Coll., on elections to the European Parliament and amending certain laws |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.07.2015 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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